65448-POH

MICHAEL WATSON

CLERK’S OFFICE

APR 112003

vs.

(Pollution Control Facility ~

COUNTY BOARD OF KANKAKEE COUNTY,

Consolidated With PCB 03-125,Pollution03-133,Control03-Board

ILLINOIS, and WASTE MANAGEMENT OF

135, 03-144)

ILLINOIS, INC.,

Respondent.

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that April 117 2003, we filed, with the Illinois Pollution Control

Board, via facsimile, the following documents:

(1)

Petitioner Michael Watson’s Response to County Board of Kankakee’s Objections

to

Watson’s Interrogatories;

(2)

Michael Watson’s Response Brief in Opposztion to Waste Management of Illinois,

Inc.’s Motion t Quash Subpoena Issued to Patricia Beaver-McGarr, Jeremy R.

Walling & Integra Realty Resources;

(3)

Petitioner Michael Watson’s Response to Waste Management of Illinois, Inc.’s

Objections to

Watson’s Interrogatories;

(4)

Petitioner Michael Watson’s Response to Waste Management of Illinois, Inc.’s

Objections to Watson’s Document Production Requests;

(5)

Petitioner Michael Watson’s Response to the County’s Motion to Quash Subpoena

(6)

Petitioner Michael Watson’s Response to County Board of Kankakee’s Objections

to Watson’s Document Production Requests;

(7)

Response Brief in Opposition to Waste Management of Illinois, Inc~‘s Motion to

Quash Subpoenas Issued to David Miller, Stephen Corcoran, and Metro

Transportation Group, Inc.

PLEASE TAKE FURTHER NOTICE that the above-described documents will also be filed

directly with the Illinois Pollution Control Board on April 14, 2003, copies of which are attached hereto

and served upon you in the manner specified on the attached Service LisL

Printed on Recycled Paper

)

Petitioner,

No. PCB 03-134

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PETITIONER MICHAEL WATSON

Jennifer J. Sacketr Pohlenz

David J. Flynn

Daniel J. Hartweg

QIJERREY & HARROW, LTD.

175

West Jackson Boulevard, Suite 1600

Chicago, IllinoIs 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorneys for Petitioner Michael Watson

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PROOF OF SERVIC~

Chicago, IL 6060 1-3242

Fax: (312) 261-1149

Attorney for Waste Management of Illinois, Inc.

Via Facsimile &

U.S.

Mail

Kenneth A. Leshen

One Dearborn Square

Suite

550

Kankakee, IL 60901

Fax: (815) 933-3397

Representing Petitioner in PCB 03-125

Via

Facsimile & U.S. Mail

George

Mueller

George

Mueller,

P.C.

501 State Street

Ottawa, 1L 61350

Fax; (312) 433-4913

Representing Petitioner in PCB 03-133

Via ILS.

Mail

Leland M~Ik

6903 S. Route 45-52

Chebanse, IL 60922-5153

Interested Party

Via Facsimile & U.S. Mail

Charles Helston

Richard Porter

Hjnshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Fax: (815) 490-4901

Representing Iankakee County Board

Via

US.

Mail

Patricia O’Dell

1242 Arrowhead Drive

Bourbonnais, IL 60914

Interested Party

Via Facsimile & U.S.

Mail

Keith Runyon

1165 Plum Creek Drive

Bourbonnaise, IL 60914

Fax:

(815)

937-9164

Petitioner in PCB 03-135

Via Facsimile & U.S.

Mail

L. Patrick Power

956 North Fifth Avenue

Kankakee. IL 60901

Fax: (815)

937-0056

Representing Petitioner in PCB 03-125

Via Facsimile & U.S. M~i1

Elizabeth S. Harvey, Esq.

Swanson,

Martin & Bell

One

IBM

Plaza. Suite 2900

330

North Wabash

Chicago, IL 60611

Fax:

(312)

321-0990

Representing Kankakee County Board

Via

Facsimile

(312)

814-3669 on 4/11/03

Via Hand Delivery on

4/14103

Bradley P. Halloran

Illinois Pollution Control hoard

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Ilearing Officer

p

C’

~

mcu~J~

—

Alesia Mansfield

~)

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Printed on Recycled Paper

Alesia Mansfield, under penalties of perjury, certifies that she served the foregoing

Notice of Filing

and documents

set forth in said Notice, on the following parties and persons

at their respective addresses/fax numbers, this

I1~day

of April, 2003, by or before the hour of

4:30 p.m. in the manners stated below

Via Facsimile & U. S. Mail

__________

Donald Moran

Pedersen & Houpt

161 North Clark Street

Suite 3100

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BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

MICHAEL WATSON,

Petitioner,

No.

PCB 03-1 34

vs.

(Pollution Control

Facility Siting

Application)

COUNTY BOARD OF KANKAKEE

COUNTY,

ILLINOIS, and WASTE

(Consolidated with PCB 03-125,

03-

MANAGEMENT OF

133, 03-135)

ILLINOIS, INC..,

Respondent.

RESPONSE BRIEF IN OPPOSITION TO WASTE MANAGEMENT OF ILLINOIS,

CORCORAN, AND METRO TRANSPORTATION GROUP, INC.

Now comes

the Petitioner, MICHAEL WATSON, by and through his attorneys,

QUERREY & HARROW, LTD., and in opposition to WASTE MANAGEMENT OF

ILLINOIS, INC.’S Motion to Quash the subpoena issued to David Miller, Stephen

Corcoran and Metro Transportation Group, Inc., alleges and states as follows:

1.

Petitioner, MiCHAEL WATSON, has filed an Amended Petition for Review

of a Decision concerning siting of a new Pollution Control facility. One of the bases of

th~Petition is that the local siting review procedures, hearings, decisions and process

were fundamentally unfair.

2.

On April 4, 2003, the Petitioner served a

subpoena duce.s tacum

on David

Miller, Stephen Corcoran and Metro Transportation Group, Inc. A copy of the

subpoena

is attached hereto and designated as Exhibit “A”. The

subpoena

was timely filed and

served.1 35 III. Adm. Code Section 101.616

et seq.

promulgates the rules and

1 Previously it was ordered that any objections to discovery propounded by the Petitioner be served upoO

the Petitioner on or before twelve noon on April 10, 2003. Respondent’s first attempt to serve its Motion

was at 12:37 p.m. on April tO, 2003 and thus is untimely and should be stricken on that basis.

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framework for discovery on matters pending before the Pollution Control Board. Section

101.616(a) sets forth the scope of discovery and provides “all relevant information and

information calculated to lead to relevant information is discoverable”. 35 III. Adm. Code

Section 101.616(a). Furthermore, ultimate use and admissib~ityis irrelevant. Section

101.616(e) specifically provides ‘it is not a ground for objection that the testimony of a

deponent or person interrogated will be inadmissible at hearing, if the information

sought is reasonably calculated to lead to reTevant information”. 35 III. Adm. Code

Section lOl.616(e).

3.

At the Public Hearings, WASTE MANAGEMENT OF ILLINOIS, INC.,

called Stephen Corcoran to testify concerning the statutory requirement of 415 1LCS

5139.2(a)(vi) which requires the applicant to establish that traffic pattern to or from the

facility are so designed as to minimize the impact on existing traffic flows. During cross-

examination of Mr. Corcoran, it became evident that a substantial portion of the work on

this issue was performed by Mr. Miller. (11/19, 1:38p.m. Tr. 38-43). Furthermore, the

report was signed by Mr. Miller. (Id. at 41-42), Mr. Corcoran did not sign off on the

report. (i~.at 42). The extent to which Mr. Corcoran performed any work concerning

the aforementioned criteria is in dispute. It would be improper and fundamentally unfair

to participants in a local siting public hearing for the applicant to call a witness to testify

as to someone else’s opinions so as to avoid presenting the expert it chose and the

individual that performed the work and prepared the report. Thus, to determine the

extent of Messrs. Corcoran and Miller’s involvement in the preparation of the report,

Petitioner has a right to review the subpoenaed documentation.

2

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4.

The documents sought by the subpoena served upon David Miller,

Stephen Corcoran and Metro Transportation Group, Inc., merely seeks a

copy of

its file

for its work in this matter. The file will allow the petitioner to ascertain whether and to

what extent Mr. Corcoran performed any work on this matter, when he became involved

in this matter and why he became involved in this matter. The file of Mr. Miller, Mr.

Corcoran and Metro Transportation Group, Inc. is clearly relevant and at a minimum

may produce information, which can lead to the discovery of relevant information.

5.

The request is not overly broad, unduly burdensome nor does it impose a

burden or expense upon Respondent’s experts. The materials are not privileged.

Furthermore, the file merely has to be brought to the front door so that it can be picked

up, copied and returned.

WHEREFORE, the Petitioner, MICHAEL WATSON, prays that an Order be

entered striking and/or denying WASTE MANAGEMENT OF ILLINOIS, INC.’S Motion

To Quash.

Respectfully submitted,

QUERREY & HARROW, LTD.,

David Flynn

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.,

175W. Jackson Boulevard, Suite 1600

Chicago, IL 60604

(312)540-7000

Attorney Registration No. 6225990

Attorney Registration No. 6204228

Attorneys for Petitioner Michael Watson

Document #: 818636

3

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Complainant/Peti tioner,

COUNTY E~0ARD OF ~(AX~E

COY,

JLLINOIS an8’~AST~MNAM~N’T

Pollution Control Board

)

)

)

)

)

)

PCBO3—134

(Con~o1idated ~

p~s

03-133,

O3-135, and 03—144)

)

)

)

)

)

)

)

TO:

Dav~Miller,

Steohen Corcoran, and,~ Metro

Thartsportatjon Group, 3:nc.

1300

Gre nbroo~B~

Hanover P?rk. IL 60133

80

d

irsuant to Section

5(e)

ofthe Environrnen

Protection

Act

(415

ILCS

5/5(e)

(2002)) and 3 1. Adrn. Code 101.622, you e ordered to attend and give testimony at

the hearingfdeposIti

in the above-cap oned matter at

____________

___

.imon

20

,at

i~/

• T.

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EXHIBIT

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Before the Illinois

MICHAEL WATSON

V.

OF ILLINOIS, INC..

Respondent.

)

~

SUBPOENA

DUCES

TECUM

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You are also ordered to bring with you documents relevant to the matter under

consideration and designated herein:

See,

attached “Rider

to

Document Si.~bpoena.”

Docurnents_su5~enaedherein are subpoenaed for product~on

on

or before

April 18, 2003. Please cal). 3ennifer

J.

Sackett Fohleriz at (312) 540-7540,

to

rn~ke arraricernents for inspection andJor~copyizig_of~docurnerits.

Failure to comply with this subpoena will subject you to sanctions under 35111.

Adm. Code 101.622(g), 101.800, and 101.802.

•

ENTER:

Ii

Dorothy

M.

Gunri, Clerk

Pollution Control Board

Date:

April 4,

2003

CERTIFICATE OF SERVICE

1,

~

—,

certify

that

on this ~

day

of A~ri1

_2003

-,

I caused copies ofthe ~

DUCES TECtIM to be served upon the following:

See, attached Service t.ist

by depositing same in United States First Class Mail, postage prepaid., unless otherwise

stated on the attached Service List.

(Signature)

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Rider

to Document Subpoena

Any and all documents concerning or related to the work and review by David Miller,

Stephen Corcoran, andlor Metro Transportation Group, Inc., 1300 Greenbrook Boulevard,

Hanover Park, Illinois, 60133 (collectively referenced herein as “Consultant”) in preparation of

or for the report submitted or prepared by Consultant and included in Waste Management of

Illinois, Inc.’s Site Location Application For Expansion of the Kankakee Landfill which was

filed with Kankakee County on or about March 29, 2002 and August 16, 2002 (“Report”),

including but not limited to any and all documents reviewed by Consultant in preparation of the

Report, any and all documents created by Consultant in preparation of the Report, any and all

documents provided to Consultant by anyone (Including, but not limited to Waste Management

ofIllinois, Inc. or its employees, representatives, agents, and/or officers). Additionally, produce

any arid all drafts ofthe Report; any and all documents relied on in the preparation ofthe Report;

and any and all documents reviewed, relied on, prepared, or received in preparation for, or which

formed a basis of th~‘testimony provided at the public hearing in the aforementioned Site

Location Application for Expansion ofthe Kankakee Landfill filed on August 16, 2002.

~Documents” as used in this Rider and Subpoena for documents is defined pursuant to Illinois

Supreme Court Rule 201(b)(l), and includes, but is not limited to, “papers, photographs, films,

recordings, memoranda, books, records, accounts, communications and all retrievable

information in computer storage,” including but not limited to, correspondence, drafts, and e-

mails.

O~xurr~ent~:8I7Ol4

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BEFORE

TIlE

Petitioner,

vs.

Application)

COUNTY BOARD OF KANICAKEE

COUNTY, ILLINOIS, and WASTE

(Consolidated With FCB 03-125, 03-

MANAGEMENT OF

133,

03-135,

03-144)

Respondent.

PETITIONER MICHAEL WATSON’S

RESPONSE

COUNTY BOARD OF KANI~AKEE’S

OBJECTIONS TO WATSON’S DOCUMENT PRODUCTION

REQUES

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd, and pursuant to the rules of Illinois Supreme Court and the Illinois Pollution

Control Board (IPCB),

provides the following Response to Respondent County Board of

Kankakee’s Objections To Petitioner Michael Watson’s Document Production Requests:

Introductioi~n

1. The County Board of

Kankakee (County) objects to the definition of Relevant Time

and Request Nos. 3 (misidentified as

“5”

in the County’s objections), and Nos 4-9. The

objection to the timeframe is addressed separately from the remaining objections, below.

2. As respects the County’s assertion that the timeframe of

the production requests is

•overly broad, the timeframe defined in the Requests is from August 1, 2001 to February 2~

2003. This is less than two months prior to the adoption of Resolution 01-10-09-393 by the

County and County Board, which Resolution purports to amend the Solid Waste Management

Plan of the County to specifically reference the Facility and WMII as the operator. This specifi.c

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reference, not the

process the

County went through in passing the Resolutiorn is evidence of

prejudgment and, as such, is an issue on which discovery is allowable. Further. there were two

siting applications filed by WMII in this case, one on or about March 29, 2002. and the other on

or about August 16, 2002. The first application was withdrawn by WMII due to a notice defect

Therefore a timeframe that encompasses the pre-March 29, 2002, is, under previous applications

of the County of Kankakee.

et ci.

v. The City ofKankakee.

et.gL,

PCB 03-31 (consolidated with

03-33, 03-35) (01/09/03), and in discovery rulings in the Waste Management of Illinois. Inc.

v.

County Board of Kane County, PCB 03-104, case, an acceptable timeframe which is not unduly

burdensome or broad for discovery purposes. Thus, the County’s objection to the timeframe should

be overruled.

3. Additionally, to the extent the County asserts that an itemization

of phone records

or a phone bill

is “attorney-client confidential” or “work-product privileged,” that argument

•

must fail, as an itemized bill provides no information (nor is it contended by the County

to

provide information) as to the substance of a telephone conversation, there are likely phone

calls on such itemized bills other than those with attorneys, and, additionally, no

work-product

privilege can be asserted by Karl Kruse (County Board Chairman), George. Washington, Jr.

(County Board Member), Pam Lee (County Board Member), Mike Quigley (former County

Board Member), as provided in Request Nos. 14, 15 and 16.

4~Finally,

as respects the County’s remaining objections overlap and repeat the

objections made by WMII to Petitioner’s Interrogatories and Document Production Requests,

and, therefore, given the short timeframe Petitioner has to respond to these

objections,

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Petitioner repeats and incorporates its Responses to WMII’s Objections to Petitioner’s

Interrogatories and Document Production Requests as and for its Response herein.

WHEREFORE, Petitioner Michael Watson respectfully requests the IPCB Hearing Officer

to overrule the County’s objections, and require the County to respond and produce documents

responsive to the subject Document Production Requests.

Dated: April 11, 2003

PETITIONER MICHAEL WATSON

BY~W~~&&~

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorney for Petitioner Michael Watson

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Petitioner,

vs.

Application)

COUNTY BOARD OF KANKAKEE

COUNTY, ILLINOIS, and WASTE

•

(Consolidated With PCB

03-125,

03-

MANAGEMENT OF

133, 03-135, 03-144)

Respondent.

PETITIONER MICHAEL WATSON’S RESPONSE TO

THE

COUNTY’S MOTION TO OUASH SUBPOENA

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd., and pursuant to the rules of Illinois Supreme Court and the Illinois Pollution

Control Board

(IPCB), provides

the following Response the County’s Motion to Quash the

Subpoena Petitioner Waston served on it:

The Petitioner filed a Petition for Siting Review and, pursuant to Section 40.1(b) of the

Illinois Environmental Protection Act (Act) and Sections 107.200-107.208 of the applicable

Illinois Pollution Control Board Regulations. (415 ILCS

5/40.1(b)

(2003) and

35

IAC

107.200-208). As specified in Section 40.1 of the Act, Petitioner

filed his Petition naming the

County Board of Kankakee as a Respondent. Technically, Section 40.1 does not require nor

authorize filing of a Petition naming the County as a Respondent.

However, other parties who filed Petitions and whose Petitions were consolidated with

Petitioner Watson’s Petition filed naming the County as a Respondent.

To prevent the circumstance in which the County would argue that any written

discovery Petitioner Watson served on the County (opposed to the County Board) was not

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properly served, as the County is not a Respondent to Petitioner Watson’s Petition for Review,

Petitioner Watson served the County with a subpoena simply seeking to have the County

respond to Petitioner Watson’s written discovery, to the extent it has information, documents,

responses or answers in addition to those of the County Board. Although admittedly not

artfully worded, the intent of the statement contained in the Rider to this subpoena stating

~‘Please produce any and all documents responsive to the Interrogatories and Document

Production Requests attached, which are or will not be produced by the Kankakee County

Board in response to the attached discovery requests” was to avoid non-responsiveness based

on a distinction between the County Board and the County.

In response to receiving the Motion to Quash from the County, Petitioner

Watson’s counsel spoke with counsel Elizabeth Harvey for the County and County Board

County’s Motion and the Petitioner’s Subpoena of the Count moot:

The County will answer and respond to all written discovery served by Petitioner

Watson on the County Board, to which no objection has been made and/or to which objections

which have been raised by the County Board are overruled. In other words, whatever the final

discovery requests are following ruling on the objections, the County and County Board will

respond and answer those requests even though directed only to the County Board.

2

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WHEREFORE. Petitioner Michael Watson respectfully requests the TPCB Hearing Officer

enter the above referenced stipulation and find the Motion and Subpoena, both, to be moot~

Dated: April 11, 2003

PETITIONER MICHAEL WATSON

BY:c)w7~44~4j

Jennifer

J.

Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorney for Petitioner Michael Watson

3

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BEFORE

THE

Petitioner,

vs.

Application)

COUNTY BOARD OF

KANKAKEE

COUNTY, ILLINOIS, and WASTE

(Consolidated With PCB 03-125, 03-

MANAGEMENT OF

133, 03-135, 03-144)

OBJECTIONS TO WATSON’S DOCUMENT PRODUCTION REQUESTS

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd., and pursuant to the rules of Illinois Supreme Court and the Illinois Pollution

Control Board (IPCB). provides the following Response to Respondent Waste Management of

Illinois, Inc.’s Objections To Petitioner Michael Watson’s Document Production Requests:

Introduction

~.

WMII objects to every Document Production Request propounded by Petitioner.

WMII’s objections consist of five

(5)

“General Objections” which are neither incorporated into

nor directed to any specific document production request. Additionally, specific objections to

each document production request are asserted by WMII. WMII’s objections, in effect, intend

to limit Petitioner from any document production in this matter, which is a position that is

inconsistent with Supreme Court Rule 201(b)(1) and the objective of discovery as a mechanism

which allows parties to better prepare for trial, seek the truth of a matter, eliminate surprise,

and promote expeditious and final determination of controversies. IL S.Ct, Rule 201(b)(1);

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arid

D.C.

v. S.A~,

et a!-.

178 Ill. 2d 551; 687 N.E~2d1032, 1037 (S.Ct, 1997). Each of

WMII’s objections is addressed, separately, below, organized by the Document Production

Request number to which the objection is made.

Response to General Objections

2. Although WMII

lists five (5) “General Objections” to Petitioner’s document

production requests, it does not incorporate or specify to which of the requests the objections

are directed. Therefore, since these general objections are not addressed to any specific

document production request, they should be denied. Alternatively, and without waiving

Petitioner’s objection to WMfl’s General Objections being considered, if the Hearing Officer is

going to consider these objections, a brief Response to each is made below:

a. WMIFs first General Objection alleges that the document production requests are

~improper, overly broad, unreasonable, and “exceeding the permissible scope” of

discovery. However, the basis for this objection appears to be that the document

production requests seek documents reLated to prejudgment, bias aridlor cx

parte

communication, and WMII alleges that Petitioner “has only made generalized and

vague statements” of improper communications in its Petition. Petitioner has raised

far more specific fundamental fairness issues in its Amended Petitioner than WMLI

did in the Waste M~gementof Illinois. Inc. v. County Bog~ofKane County,

PCB 03-104, case, yet WMII was allowed to inquire into communications ofBoard

Members pre-fihing, during the pendency of the siting application, and post-siting

decision in that case.

See,

PCB 03-104, March 12, 2003 Order. Similarly, in the

County ofKankakee. ci

al.

v. The City ofKankakee. e~L,PCI3 03-31 (consolidated

with 03-33, 03-35), p~4-5(01/09/03), case the IPCB specifically allowed admissj~n

(opposed to discovery, which is a broader arid more flexible standard) of evidence

concerning the pre-fihing contacts.

See,

County of Kankakee at p. 4 (discussIon of

pre-filing contacts). Petitioners should be allowed to inquire into information that

may lead to admissible evidence concerning

exparie

communications, prejudgment,

or bias. This information is solely in the control of Respondents, WMil and the

County and County Board, as any meetings or communications that were improper

are not likely to be held out in the public for everyone to

sec.

Additionally, although

the IPCB “generally confines itself to the record developed by the municipality”, it

“will hear new evidence relevant to the fundamental fairness of the proceedings

where such evidence necessarily lies outside of the record. County of Kankakee, p.

4-5.

This standard in conjunction with the requirement that allowable discovery is

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necessarily broader than admissible evidence, requires that WMII’s objections be

denied. (S.Ct. Rule 201(b)(l)).

b. WMTJ alleges that Petitioner is

not

entitled

to any information relating to the

“process by which the Kankakee Solid Waste Management Plan was enacted and

amended.” However, the document production requests do not seek “process”

information, such as how the County Board voted or whether they formed any

committees. Rather, it seeks communications between \VMII and the County and

County Board concerning the adoption of specific resolutions amending the Solid

Waste Management Plan. These requests are relevant discovery requests, as they

inquire as to documentation evidencing communications between WMTT and the

County/County Board, which can lead to the discovery of admissible evidence

concerning cx

parte

communications, as well as to the singular designation in the

solid waste management plan of WMI1’s site and WMIJ as operator. The issue as to

whether such singular designation is prejudgment of a particular site has not

previously been decided by the IPCB. The cases WMII cites are distinguishable on

this ground. Therefore, this General Objection should be overruled.

c. Likewise, WMII’s general objection numbers 3, 4 and

5

should be denied for the

same reasons stated in Paragraphs 2.a. and 2.b., above, which responses are repeated

and incorporated herein.

d. Finally, WMII generally objects to the document production requests on the basis of

“attorney-client privilege”, “attorney work-product doctrine”, or “any other

applicable privilege or protection.” As an initial matter, a party must raise a specific

privilege as an objection and an objection based on “any other applicable privilege

or protection” is not proper. As respects “attorney-client privilege” and ~work-

product doctrine,” it is not Petitioner’s intent to seek discovery or lcgitimatcly

privileged information and Petitioner seeks answer to its document production

requests subject to Illinois Supreme Court Rule 201(n).

e. Therefore, WMII’s general objections, if considered by the Hearing Officer, should

be overruled and WMJI should be required to respond to all of the document

production requests, subject to Illinois Supreme Court Rule 20 1(n).

Response to Objection to Request Nos. 1-2

3.

Requests 1-2 seek production of documents that WMII “intendsJ to or may utilize at

any deposition in this matter” and which WMII “intends

to, or may, utilize at the hearing

scheduled in this matter.” WMII objects to the portion of the Request seeking production of

documents which WMII “may” use. as overly broad, unduly burdensome and as

being covered by

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the “attorney-client privilege” and “attorney work-product doctrine.” WMII’s objection is not

supported by citation to any authority prohibiting an inquiry, to avoid surprise and an argument over

what a party “intended”, as to documents that “may” be utilized. Further, WMII’s objections as to

privilege and work-product are not understandable, as if WMII would present a document as an

exhibit at deposition and/or hearing, it could not assert any privilege concerning that document.

Whether WM1I plans on utilizing a non-privileged document is not privileged information, if so, no

one would be required to disclose, pursuant to the S.Ct. Rules, any documents they were going to

use at trial, which is neither the rule nor the law. Therefore, WMII’s objections should be overruled

and WMII should be required to produce documents responsive to Request Nos, 1-2.

Response

to

WMU’s Objections

to Request

Nos.

3-18

4. WMH makes the same type of objections to Request Nos. 3-18 as it raises in opposition

to Petitioner’s Interrogatories. Given the short tirneframe Petitioner has to Respond to all of the

objections made and motions to quash presented to its discovery (less than I day and a half, given

the after 12:00 pm filing by the objectors to discovery), and the fact that the objections are the same

as what is raised by WMll to Petitioner’s Interrogatories, Petitioner repeats and incorporates its

Response to WMII’s Objections to its Intenogatories as and for the remainder of its Response to

these objections. In particular, WMIE objects on various grounds, but primarily, breadth, burden,

the allegation that Petitioner has not made specific enough allegations regarding ftindamental

fairness to justify its discovery, and that the requests seek information concerning statutory criteria

rather than fundamental fairness (which they do not). All of these allegations are responded to in

Petitioner’s Response to WMII’s Objections to Interrogatories and are contrary to the purpose and

law as respects discovery. IL S.Ct. Rule 201(b)(1); D.C. v~S.A.,

et al.,

178 Iii. 2d

551;

687

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N.E.2d 1032, 1037 (S.Ct. 1997); County

of

Kankakee. ci

a!.

v.

The City ofKankakee,

etaL,

PCB

03-3

1

(consølidated

with

03-33, 03-35) (01/09/03).

WHEREFORE,

Petitioner Michael Watson

respectftilly requests the IPCB I-Tearing

Officer

to overrule WMII’s objections, and require WMII to respond and produce documents responsive to

the subject Document Production Requests.

Dated: April 11, 2003

PETITIONER MICHAEL WATSON

By____

Jennifer

J.

Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorney for Petitioner Michael Watson

Documcn~#: 818773

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BEFORE

THE ILLINOIS POLLTJ’TION CONTROL

BOARD

Petitioner,

No. FCB 03-134

vs~

Application)

COUNTY BOARD OF KANKAIcEE

COUNTY, ILLINOIS, and WASTE

(Consolidated

With

PCB 03-125, 03-

MANAGEMENT OF

133,

03-135,

03-144)

WASTE MANAGEMENT OF ILLINOIS, INC.’S

OBJECTIONS TO WATSON’S INTERROGATORIES

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd., and pursuant to the rules of Illinois Supreme Court and the Illinois Pollution

Control Board (TPCB), provides the following Response to Respondent Waste Management of

Illinois. Inc.’s Objections To Petitioner Michael Watson’s Interrogatorics:

Introduction

1. WMII objects to every Interrogatory from Petitioner, except for the first two and

the fourth, standard Interrogatories which seek identification of the Persons who answered and

provided information to aid in answering the Interrogatories and identification of the Persons’

WMII intends

on calling as a witness at the public hearing WMII’s objections consist of six

(6) “General Objections” which are incorporated only into one Interrogatory (Interrogatory

No. 3) and separate objections to Interrogatory Nos

5-24.

Under WMII’s theory of

objections, the only Interrogatories Petitioner is apparently allowed to ask are who prepared

the answers to and who helped prepare the answers to a document which only asks who WMII

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intends to call at hearing, with no other substantive questions. Clearly 5uch an argument is

against the grain of long standing law and Supreme Court Rule 201(b)(1), which authorizes

broad discovery “regarding any matter relevant to the subject matter involved in the pending

action. (IL S.Ct. Rule 201(b)(1)). Illinois Supreme Court Rule 201(b)(1) is consistent with

the consistently stated objective of discovery: “The objectives of pretrial discovery are to

enhance the truth-seeking process, to enable attorneys to better prepare for trial, to eliminate

surprise and to promote an expeditious and final determination of controversies in accordance

with the substantive rights of the parties.” D.C. v. S.A.,

et at-,

178 Ill. 2d

551;

687 N.E.2d

1032, 1037 (S.Ct. 1997).

Further, these objections contradict the IPCB rules

which

specifically provide that “it is not a ground for objection that the testimony of a deponent or

person interrogated will be admissible at hearing, ~f the information sought is reasonably

calculated to lead to relevant information. (Section 101.616(e)). Each of WMII’s objections is

addressed, separately, below, organized by the Interrogatory number to which the objection is

made.

Response

to General Objections

2. Although WMII lists six (6) “General Objections”

to Petitioner’s Interrogatories, it

only incorporates these general objections into its objections to Interrogatory No. 3.

Therefore, since these general objections are not addressed to any other Interrogatory, they

will not be addressed outside the context of Interrogatory No, 3, as an objection made without

relation to a specific portion of the Interrogatories is nothing more than a generalized grievance

with no legal significance. However, to the extent the

IPCB

Hearing Officer determines one or

more of these objections is applicable to an Interrogatory, other than No. 3 and other than one

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in which a specific portion of the general objection is repeated, Petitioner reserves his right to

respond to such newly related objection.

Response to~j~ctionto Interrog~torvNo. 3

3• Interrogatory No. 3 states: “Identify any

Communications or other documents relied

upon in answering these Interrogatories.” WMII objects to this Interrogatory for the

following

reasons, each ofwhich is addressed after the listed reason,

below:

a. WMII

alleges Interrogatory No. 3

is “improper, overly broad, unreasonable.

“exceeding the permissible scope”, and “exceedingthe

maximum number”.

interrogatory No. 3 simply asks for identification ofthe basis for the answers to the

interrogatories, and therefore, similar to Interrogatories 1 and 2, to which WM1I has

no objection, is proper and has a very limited scope In fact, the definition of the

term “Communication” in Petitioner’s Intei-rogatories is almost identical to the

definition propounded by

WMI1

in another matter pending before the IPCB.

See.

Exhibit A,

attached). As respects WMEI’s objection that Interrogatory No. 3

exceeds the allowable number of Interrogatories, WMJI is simply wrong: 3 is

nowhere near 30.

b. WMII alleges Interrogatory No. 3 “seekts information relating to alleged

prejudgment of adjudicative facts or fundamental unfairness.

- .“

concerning issues

raised in Petitioner’s IPCB Amended Petition and, in order to be able to engage in

such discovery, Petitioner must present “evidence of pre-filing collusion or

judgment.” Without waiving Petitioner’s response to the basis of’ WMII’s objection

(which is addressed later in this Response), this objection is misplaced with

Interrogatory No. 3, as Interrogatory No. 3. is more in tine with a proccdura~

interrogatory, such as Nos. 1-2, and makes no specific reference to seeking

“prejudgment” information.

c. Likewise, WMII’s general objection numbers 3 (SWMP), 4 (Host Agreement), and

5

(statutory criteria) are misplaced as objections to Interrogatory No. 3.

d. Finally, WMII objects to Interrogatory No. 3 on the basis of “attorney-client

privilege”, “attorney work-product doctrine”, or “any other applicable privilege or

protection” As an initial matter, a party must raise a specific privilege as an

objection and an objection based on “any other applicable privilege or protection” is

not proper. As respects “attorney-client privilege” and “work-product doctrine,” it

is not Petitioner’s intent to seek discovery or legitimately privileged information and

Petitioner seeks an answer to Interrogatory No.3 subject to Illinois Supreme Court

Rule 20 1(n).

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e. Therefore, WMII’s objections to Interrogatory No. 3 should be overruled and WMIJ

should be required to answer Interrogatory No. 3, subject to Illinois Supreme Court

Rule 201(n).

Response to Objection to Interr~gatorvNo. S

4. Interrogatory No.

5

essentially seeks identification of Persons involved in the

negotiation of the Host Agreement and information concerning their role in those negotiations.

WMII’s objections to both this and several other Interrogatories focus on two theories.

First,

that,

since the host agreement is legislative, it is not reviewable by the IPCB and, thus, WMII alleges

-

Petitioner cannot conduct discovery into the negotiations of that agreement. Second, that Section

40.1(b) prohibits the IPCB from reviewing anything outside the record before the Kankakee County

Board. WMII misapplies the law to fit its objection.

5.

Neither Interrogatory No.

5

nor Petitioner’s Amended Petitioner seek to have the host

agreement, itself, reviewed by the IPCB. The Interrogatory properly seeks identification of the

Persons involved in the negotiation of the host agreement, and the role of those Persons, as that

information may lead to admissible evidence concerning

exparte

communications, prejudgment, or

bias. This information is solely.in the control of Respondents, WMII and the County and County

Board, as any meetings or communications which were improper are not likely to be held out in the

public for everyone to see. Additionally, although the IPCB “generally confines itself to the record

developed by the municipality”, it “will hear new evidence relevant to the fundamental fairness of

the proceedings were such evidence necessarily lies outside of the record. County of Kankakee.

ci

aLv. The City of Kankakee.

el al.,

PCB 03-31 (consolidated with 03-33, 03-35), p.

4-5

(01/09/03).

In the County of Kankakee appeal of a siting decision by the City of Kankakee, the IPCB

specifically allowed admission (opposed to discovery, which is a broader and more flexible

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standard)

of

evidence concerning the City’s negotiations of a host agreement with the siting

applicant.

See,

County of Kankakee at p. 4 (discussion ofpre-filing contacts).

6. Oiven that information concerning host agreement negotiations was allowed to be

admitted in the County of Kankakee case, the discovery ofwho negotiated the host agreement and

the role(s) of those persons. whether or not ultimately admissible in this case, is relevant and

legitimate discovery. Therefore, WMII’s objections should be overruled and it should be required

to answer Interrogatory No.

5.

Response to WMII Objections to Interrogatory No.6

7. Interrogatory No. 6 seeks identification of the Persons who drafted the host agreement

and what portions of the agreement those Persons drafted. WMII objects to Interrogatory No. 6 for

the same two reasons it objects to Interrogatory No. 5.

Petitioner incorporates his Response to

WMJI’s objections to Interrogatory No. 5 as and for his Response to the objections to Interrogatory

No. 6, and requests that WMII’s objections be overruled and

that WMII be required to answer

Interrogatory NO. 6.

Response to

WIVIII

Objections to Intcrro~atorv

No. 7

8. Interrogatory No. 7 seeks the dates on which WMII or its affiliates, parents or their

officers or employees submitted drafts or the final property value protection plan which is attached

as an Exhibit to the I-lost Agreement. This is a simple interrogatory which helps place a time frame

around the host agreement property value protection plan negotiations. This is relevant to Petitioner

in its review of cx

pane,

prejudgment, and bias, in order to put into perspective the relationship

communications between the County and WMII had on an exhibit to the host agreement which is of

significance to fundamental fairness issues raised in more than one way and in more ways than

simply

exparte

communications.

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9. For example, Petitioner states in its Amended Petition that the property value protection

agreement was not included in the application purchased by Petitioner and held by every one of the

public participants and even the Hearing Officer. If, the date on which the subject exhibit was

submitted to the County is, in fact, after the date of the “filing” ofthe subject siting application, then

that information legitimately supports the fundamental fairness issue raised by Petitioner concerning

this Exhibit. Therefore, Interrogatory No. 7 is relevant and specifically calculated to lead to

admissible dIscovery. WMH’s objections should be overruled, and WMII should be directed to

answer Interrogatory No. 7.

Response to WMH Objections to Interrog.atorv

No. 8

10. Along the same lines as Interrogatories No.

5

and 6, Interrogatory No. 8 seeks

additional information concerning communications which took place concerning the Host

Agreement. Interrogatory 5 seeks Persons who negotiated, 6 seeks Persons who drafted, and 7

seeks Persons who Communicated concerning the agreement. Therefore, for the same reasons the

objections to Interrogatory Nos. 5-6 should be overruled, ~oto should the objections to Interrogatory

No. 8 be overruled. Additionally, outside the timeframe of the host agreement negotiations,

Interrogatory No. 8 seeks communications about the host agreement. for example, if any such

communications occurred during the pendency of the siting application. This is to avoid a situation

in which, although the host agreement is a part of the siting application, the respondent to an

interrogatory seeking disclosure of communications between the applicant and the County Board

during the pendency of a siting application, can avoid answering such an interrogatory as such a

communication may have involved the substance of the host agreement or any proposed

amendment thereto, rather than,

per se,

the siting application. Such communications are

cx panic

and Petitioner has a right to inquire as to their occurrence and substance.

See,

County ofKankakee,

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et a!..

v. The City of Kankakee.

et al.,

?CB

03-31

(consolidated with 03-33,

03-35) (01/09/03).

Therefore, for this additional reason, WMH’s objections to Interrogatory No. 8 should be overruled

and WMII should be required to answer this Interrogatory.

Response to

WMH Objections to Interrogatory

No.9

11.

Interrogatory No. 9 seeks identification ofcommunications between WMII

and certain.

identified persons or groups of persons, during a defined time frame. WMTI objects to this

Interrogatory as being overly broad, unduly burdensome, as seeking information concerning

prejudgment or bias when it contends no specific acts of prejudgment or bias have been alleged by

Petitioner, to the extent this Interrogatory seeks information concerning specific statutory criteria.

and as being in excess of the 30 interrogatory limit. The type of discovery sought in this

Interrogatory is permissible pursuant to County of Kankakee. et

al..

v. The City of Kankakee.

et aL.

PCB 03-31 (consolidated with 03-33,

03-35)

(01/09/03),

and

the general and well-established law

requiring a larger standard governing the breadth of discovery than the standard used for

admissibility. See,ILS.Ct.RuIe2Ol(b)(1)andD.C. V. S.A.,

eta!.,

178 Ill. 2d 551; 687 N.E.2d

1032 (S.Ct. 1997),

Additionally, the Interrogatory seeks cx

parte

communications or

information that will lead to discoverable or admissible evidence concerning cx

pane

communications, in addition to bias and prejudgment, which WMII fails to address in its

objection. Therefore, WMII’s objections with respect to breadth and burden, and its objection

alleging a requirement that specific acts be at issue, should be overruled.

12. Further, the fact that no specific fundamental unfairness was alleged was at issue

in

another discovery dispute concerning interrogatories in the case Waste Management of Illinois,

Inc. v. County Board of Kane County, PCB 03-104, and, even though the Petitioner did nor

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allege, in that case, any specific acts of prejudgment, bias or

ex pane

communications, it was

allowed to seek discovery on a similar topic.

See,

Waste Management of Illinois, Inc. v.

County

Board

of Kane County, PCB 03-104, Order dated March 12, 2003. Petitioner’s

Amended Petition, in this case, specifically outlines and identifies fundamental fairness issues

on appeal, to which this Interrogatory is relevant.

13. Finally, as respects WMII’s objection that Interrogatory 9 exceeds the allowable, 30

interrogatories, WMII’s objection must fail. Interrogatories with subparts that relate to and

further specify the main interrogatory are not counted as separate interrogatories.

For

example, in the Illinois Supreme Court approved form interrogatories, many of these

interrogatories have subparts, which if counted as individual interrogatories would exceed the

30 allowable interrogatories.

See~

form Motor Vehicle Interrogatories to Defendants, Nos. 7

and 9; form Matrimonial Interrogatories, Nos. 4, 6-10, 12-20. WMII makes no objection or

argument that the subparts of the individual Inrerrogatories which it contends exceed the 30

allowable number are unrelated to the main Interrogatory. Therefore, WMII’s objection on

this ground must also be overruled and WMLI should be directed to answer the Interrogatories.

to which this objection is made, including but not limited to Interrogatory No. 9.

Response to

WMII Objections to Interrogatory

Nos.

10

-12

14. WMII makes the same objections to Interrogatory Nos. 10-12 as previously addressed in

this Response. Since WMII’s objections are the same as those objections addressed previously in

this Response, Petitioner relies on and incorporates its Responses to those objections, above, as and

for its Responses to WME’s objections to these Interrogatories. Therefore, the objections byWMII

should be overruled, and WMIJ should be required to answer Interrogatory Nos. 10-12.

S

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Re~ponseto WMII Objections to Interrogatory No. 13

15. WMII makes the same objections to Interrogatory No. 13 as previously addressed in this

Response. Additionally, however, WMII objects to Interrogatory No. 13 alleging that the phrase

“concerning or relating to the development of a landfill expansion, at within or adjacent to the site

that was the subject ofthe Siting Application” is vague and ambiguous, without stating, specifically.

what portion ofthat phrase WMII does not understand. The phrase is plain and concise, formulated

with readily understandable words. It is relevant as any discussions concerning a landfill expansion

at or adjacent to the site which was the subject ofthe Siting Application, is, arguably, and depending

on the titnefrarne of such communication, an cx

parte

communication, even though the ~Siting

Application”

per Se,

may not have specifically been discussed. Therefore. this objection from

WMTI should be overruled.

16.

Additionally, as respects the remainder of WMII’s objections to this Interrogatory, since

they are the same as those objections addressed previously in this Response, Petitioner relies on and

incorporates its Responses to those objections, above, as and for its Responses to WMII’s objections

to these lnterrogatories~.

Response to WMII Oblections to Interrogatory Nos. 14-17

17.

WMII makes the same objections to Interrogatory No. 14-17 as previously addressed in

this Response. Since \VMH’s objections are the same as those objections addressed previously in

this Response, Petitioner relies on and incorporates its Responses to those objections, above, as and

for its Responses to WMII’s objections to these Interrogatories. Therefore, the objections byWMII

should be overruled, and WMII should be required to answer Interrogatory Nos. 14-17.

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Response to WMfl Objections to Interrogathrv No. 18

18. WMII objects to

Interrogatory No. 18, which seeks identification of those documents

which were physically filed on “August 16, 2003” with the County, on the basis that the

typographical error which occurred in the date “August 16, 2003” makes the Interrogatory vague

and on its repeated basis that Interrogatory No. 18, exceeds the number of interrogatories allowed to

be

served.

Clearly

WMII

understands that the August

16t11

date

was intended to reference “August

16, 2002” rather than 2003, not only because it is logical, but also because. if it didn’t see that date

error as an error, it would not have stated in its objections that the Interrogatory “identifies a filing

date.” Petitioner herein amends its Interrogatory No. 18 to state August 16, 2002, rather than

August 16, 2003, and asks that WMII objection be overruled. Further, with respect to WMII’s

quantity of interrogatories objection, Petitioner repeats and incorporates the relevant portion of its

Response to objections to Interrogatory No. 9 (Paragraph 13), as and for its Response to this

objection to Interrogatory No. 18.

Response to WMII

Objections to Interrogatory No.

19

19. Interrogatory No. 19 seeks identification of WMII’s defenses to the fundamental

fairness issues identified in PetitIoner’s Amended Petition. WMH objects to such disclosure on the

basis that “legal defense strategies” are not subject to disclosure and that the Interrogatory seeks

“attorney —client privilege” and “work-product doctrine” information. \VMII also objects to this

Interrogatory

as it alleges it

exceeds the 30 allowable number of interrogatones. WMII’s objections

must fail, as the Interrogatory does not seek “strategies” of counsel.

it

seeks identification of

defenses. This is a common place interrogatory and is substantiated by Illinois Supreme Court

approved, form interrogatolies, which similarly, seek information concerning the defense ofa case.

For example, in the form Medical Malpractice Iriterrogatories, numbers

6

and 7, a plaintiff seeks

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identification of all medical publications, journals, rules, regulations, and other materials, which a

defendant intends to use in defense of a complaint. Similarly,. Illinois Supreme Court Rule

201(b)(l) requires “full disclosure regarding any matter relevant to the subject matter involved in

the pending action, whether it relates to the claim or defense.

. .“.

Finally, WMII cites no case law,

rule or law in support of its objection. Therefore, WMII’s objections to this Interrogatory should be

overruled, and WMII should be directed to answer.

20.

Alternatively, if the Hearing Officer believes the wording ofInterrogatory No. 19 can

be

construed (although not the intent of the drafter) to seek “legal defense strategies,” Petitioner

requests leave to amend,

instanter,

the Interrogatory to read: “Identi~’and describe each and every

fact supporting WMII’s defense ofthe fundamental fairness issues itemized in Petitioner Watson’s

Amended Petition for Review of Siting.”

21. WMII additionally objects to this Interrogatory as exceeding the allowable number of

interrogatories. Petitioner repeats and incorporates the relevant portion of its Response to objections

to Interrogatory No. 9 (Paragraph 13), as and for its Response to this objection to Interrogatory No.

19. Therefore, WMIFs objections should be overruled and WMIT should he required to answer

Interrogatory No. 19.

Response to WMII Objections to Interrogatory Nos. 20-23

22. WMII objects to Interrogatory Nos. 20-23 on the sole ground that they allegedly

exceed the allowable number of interrogatories. Petitioner repeats and incorporates the relevant

portion of its Response to objections to Interrogatory No. 9 (Paragraph 13), as and for its Response

to this objection to Interrogatory Nos. 20-23. Therefore, WM1I’s objections should be overruled

and WMII should be required to answer Interrogatory Nos. 20-2

3.

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Response to W~fflObjections to Interro~torvNo. 24

23~Interrogatory No. 24 seeks identification

of

every Person who signed a report or any

portion of the Siting Application. \V~IIIobjects alleging that the Interrogatory seeks information

related to the statutory criteria and that

it

exceeds the allowable number ofinterrogatories.

24.. Seeking identification of the individuals who signed portions of the application is not

seeking information concerning the criteria. It is relevant to Petitioner’s disclosed fundamental

fairness issue identified in Paragraph lO.E. of Petitioner’s Amended Petition for Review (the

opening sentence of that subparagraph states: “The public hearings were not fair, due to

unavailability of WMII’s witnesses who had substantial input in the preparation of the siting

application and its Criteria-specific reports.”).

Therefore, WMJI’s objection should be

overruled. Alternatively, to the extent leave is needed at this time, Petitioner should be

granted leave to propound requests to admit to WMII on this subject matter.

25. Finally, as respects WMII’s objection on the ground that Interrogatory No. 24

exceed the allowable, 30, number of interrogatories, Petitionet~repeats and incorporates the

relevant portion of its Response to objections to Interrogatory No. 9 (Paragraph 1 3), as and for its

Response to this objection to Interrogatory Nos. 20-23. Therefore, WMII’s objections should be

overruled and WMII should be required to answer Interrogatory No. 24.

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WI4ERPPORE. Petitioner Michael Watson respectfully requests the IPCB Hearing

Officer

to overrule WMII’s objections, and require WMII to answer the subject Interrogatories.

Dated: April 11, 2003

PETITIONER MICHAEL WATSON

By

~

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175

West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No.

6225990

Attorney for Petitioner Michael Watson

D,t~um~ntit: 818623

13

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BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT

OF

ILLINOIS. INC.,

)

)

Petitioner,

)

No. PCB 03-104

)

vs.

)

(Pollution Control Facility

)

Siting Application)

COUNTY BOARD OF KANE COUNTY,

)

ILLINOIS,

)

)

Respondent.

)

YA$.TEMANAGEMENT

OF ILLINQ15, I~C.’SR~S~ONSETQ

ICANE COtTNTY

p

iio~sro

INTERROGATORTES

Waste Management of Iflinois, Inc., by its attorneys, Pederse~& Houpt, responds to

Kane County’s Objections

to

Interrogatories

by stating as follows:

.~Thj~ctionto Definition D.

1.

Kane County objects to Definition t) as overly broad and irrelevant because it

includes with the meaning of’Siting Application’ the Site Location Application filed

February

13, 2002,

and June 14, 2002. Respondent claims that since the Application filed

February 13, 2002

is not

part

of

the public record in this matter and

is

not the application on

which

the

public hearings were held or on which Kane County made its decision, any discovery

request related to this application is overbroad and irrelevant.

2.

Kane County’s objection is without merit. The first official act to commence the

local siting process for the Woodland Transfer Facility was the service arid publication

itt

Januaiy 2002, ofNotice ofI~tefltto File the Site Location Application for the Woodland

This

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tra.nsfer Facility.

That Application

was filed February 13, 2002. Until that Application was

withdrawn

in May, 2002, due to an

alleged lack ofnotice, the request was pending before the

Kane County Board, to which all governing, procedural and fundament~1fairness rules applied.

County Board members were required to abide by those rules, including the 1imitation~

on

prejudgment and

cx

parte cornmtmicarion.s.

3.

The February 14 Application was

in

afl material respects the same as the Site

Location Application flied June 14, 2002. The same procedural rules applied to both. Actions of

Kane County Board members governed by these rules occurring from January 2002 to June 13,

2002, would very likely affect the fairness of the siting proceedings on the same Application

occurring from June 14, 2002 to December 10, 2002. At a minimum, such actions may in some

way reasonably relate to the fairness ofthe proceedings. Thus, initerrogatories that seek facts

covering the January 2002

-

Janu~zy2003 time frame are properly requesting relevant facts or

facts that may lead to the discovery ofrelevant in.forrnation, 35 Ill.Adm.Code §101.616(a).

Objection to Definition H.

4.

Respondent objects to the time period for answering the intet-rogatories as

overbroad and burdensome. In addition, Respondent argues that any time frame prior to June 14,

2002, is burdensome because any such prefihing discussions would not be ~ parte.

5.

As

stated above, the siting process for the Woodland Transfer Facility

commenced in January, 2002. Discussions or communications relating to facts or information

relevant to the Site Location Applicationwould likely have occurred at any time after formal

commencement ofthe siting process in January 2002. In any event, the interrogatories seeking

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communications during the January 2002

-

January

2003

time frame are rezson.ably calculated to

lead to the discovery ofinformation relevant to fundamental fairness, including prejudgment, cx

parte cornmu.nicatjon and evidence dehors the record.

35

fll.Adm.Code §101.616(a).

Corrirnunications prior to Jane 14, 2002, may relate directly to these fundamental fairness issues.

Moreover, communications after December 10, 2002, may refer orrelate to prior contacts or

information that concern fundamental faIrness. This is particularly true where, as here, a number

ofCounty 8oard members were sworn in the same day they voted on the Site Location

Application

*

December 10, 2002.

6.

Respondent further contends that the time frame is overly broad for these County

B~~rdmembers who were citizens until they were sworn in on December 10.

7~

The requLremnents of fundamental fairness apply to every Counry Board member

who

votes on the

siting request. The rule that the County render on adjudicative decision,

without prejudgment or inappropriate

ex

parte contacts, applies to all County Board members

who vote as decisionmakers, regardless of when they

take

office. County ~oard members who

literally appear at the la.st moment to vote on a siting :equest are not excused from the StnC.tures

offundamenìtal fairness,

Objection to 1nterrog~atoryNo. 2.

8.

Respondent objects to Interrogatory No. 2 because it requests attorney-client

comrnunicatjons

9.

Ms. Sackett-Poblenz represented the County and County Staff during these

proceedings. She did. not represent the decisionrnaker, the Kane County Board. Her

1hi.~Docz~ene

i~

?rbiied

an R~yc.~kd

Poper.

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represerI~.tionof County Staffbegan no later than February 13,

2002,

and continued through her

preparation ofthe “County Review Team’s Summary ofthe Siting ?roceedings~and the

December 10 vote ofthe Kane County Board In fact, the Kane County Rules of Procedu.re for

New Regional Pollution Control Facility Site Approval Applications prohibited any

communication between Ms. Sackett Pohlenzand the Hearing Officer and the Director

of

the

County Department ofEnvironmental Management, both ofwhom advised the Kane County

Board, SeeKane County OrdinanceNo. 01-281, Sections 11-104, 1

l-105(d)(1l)(f)(5).

Thus,

the communications requested woud not involve privileged attorney-client ccmnmunication

10.

Respondent further objects to Interrogatory No. 2 because it requests

communications between County Board members.

ii.

Discussions or communications between or among Cou.nty Board members may

be particularly relevant to issues of prejudgment, inappropriate cx parte contacts wnh non-

County Board persons and facts dehprs the record. This is especially true here where five

County Board rnerribers voted on the siting request the same day they were sworn in as County

Board members. Requiring answers to this interrogatory will not “chill” appropriate di.~cussions

among County Board members regarding the siting request. The interrogatory is important,

however, to discovery communicatIons that may implicate ndamental fairness, such as

discussions with constituents and iniforz-nation obtained or conveyed outside the record.

12

Respondent repeats its earlier objection that County ~oard members sworn in

December 10 are not bound by the rules prohibiting cx parte communications, arid hence should

not have

t~

answer in

a

time frame that precedes their swearing in, Thus, Respondent contends

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that the appropriate time frame for these County Board members is one day

-

December 10

-

the

day they were sworn in

and

voted on the siting request.

13.

For the reasons set forth

iii

paragraphs

5

and 7 above, Respondent’s objection is

without merit. Decisionmakers, regardless ofwhen they take office, are required

to

comply with

the principles offundamental fairness. By voting on a siting request, 2. County Board member is

obligated to adjudicate in a ftmdamentai fair manner, which includes no prejudgment or

inappropriate ex pane contacts. The inten~ogatoryis designed to obtain facts or information

relevant to these fundamental fairness issues.

14.

Interrogatories that seek relevant information or are reasonably calculated to lead

to

the discovery ofsuch information are proper. Information that refers or relates to prejudgment

of

the siting request, ex parte commu~,jcatjon.s,and evidence outside the siting record

is

relevant,

andthus discoverable, in this appeal. Such relevant information includes pre..filing

communications. Q~untvof~inkakee v. city ofKankakee, No. PCB 03-31, slip op. at S

(January 9, 2003). Respondent’s objections should be rejected and Respondent should be

required to answer the interrogatories by March 10, 2003.

Respectailly submitted,

This

DQCTLment is’ Prmnicd

on

Rec,’ckdP~pe-r.

ff889017188

01 8190 O~92S0 ~0~d~H ~

OF ILLINOIS,

INC.

Donald J.

One of Its

PEDERSEN & HOUPT

161

North Clark, Suite 3100

Chicago, IL 60601

(312) 641-6888

363474J

---

Petitioner,

No. PCB 03-134

Application)

COUNTY BOARD OF KANKAKEE

COUNTY, ILLINOIS, and WASTE

(Consolidated with PCB 03-125, 03-

MANAGEMENT OF

133, 03-1 35)

Respondent.

MICHAEL WATSON’S RESPONSE BRIEF IN OPPOSITION TO WASTE

Now comes the Petitioner, MICHAEL WATSON, by and through his attorneys,

QUERREY & HARROW, LTD., and in response to WASTE MANAGEMENT OF

ILLINOIS, INC.’S Motion to Quash the

subpoena

issued to Patricia Beaver-McGarr,

Jeremy R. Walling and Integra Realty Resources, alleges and states as follows:

1.

MICHAEL WATSON has filed an Amended Petition For Review of The

Decision by the County Board of Kankakee concerning siting of a new Pollution Control

facility. One of the bases of the Petition is that the local siting review procedures,

hearings, decisions and process were fundamentally unfair.

2.

The Petitioner caused a

subpoena

to be issued and served upon Patricia

Beaver-McGarr,3.

PatriciaJeremyBeaver-McGarrR.

Walling andwasIntegracalledRealtyby

theResourcesApplicantiRespondentin

a timely manner.to

testify1

concerning 415 ILCS 39.2(iii) requiring Applicant to establish that the proposed facility

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has been located to minimize the affect on the value of the surrounding property.

During cross-examination, it was established that Ms Beaver-McGarr has used various

CVs wherein the information concerning her credentials varies. It was brought into

question as to whether she ever obtained a degree from Daley College. There was

cross-examination on this issue. During cross-examination, Respondent/Applicant’s

attorney represented that Ms. Beaver-McGarr did in fact obtain a degree and that it

would produce the degree or in the alternative produce her for further examination.

(11/20, 9:00am., Tr. 15-16). Respondent/Applicant’s attorney did not produce the

degree as represented and promised nor did it produce Ms. Beaver-McGarr for further

cross-examination as represented and promised.

4.

The Petitioner and all participants involved in the hearings are entitled to

full and complete cross-examination on all relevant matters especially as to an expert’s

purported credentials. It is clear, unconitradicted and uncontroverted that the Petitioner

and all other participants were not afforded an opportunity to fully and completely cross-

examine Ms, Beaver-McGarr. If the Petitioner was allowed to perfect its impeachment

and establish that Ms. Beaver-McGarr had perjured herself, additional cross-

examination would have been conducted into additional areas including but not limited

to what extent the report and purported underlying basis was in fact her work product.

As a result, the hearing was fundamentally unfair,

5.

The framework and rules governing discovery on matters pending before

the Pollution Control Board are contained in 35 Ill. Adm. Code Section 101.616

etseq.

Section 101 .616(a) sets forth the scope of discovery and provides in pertinent part, “all

1 Pursuant to order, the Respondent was required to serve all objections to discovery by fax on or before

noon on April 10, 2003. Respondent did not attempt to serve the Motion to Quash until approximately

ff899017188 01 81500179280

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relevant information and information calculated to lead to relevant information is

discoverable”. 35 Ill. Adm. Code Section ‘101.616(a). Furthermore, ultimate use and

admissibility is irrelevant. Section 101.616(e) specifically provides “it is not a ground for

objection of the testimony of a deponent or person interrogated will be admissible at

hearing, if the information sought is reasonably calculated to lead to relevant

information”, 35 Ill. Adm. Code Section 101 .616(e).

6.

In essence, the

subpoena

served upon Patricia Beaver-McGarr, Jeremy

R. Walling, and Integra Realty Resources seeks production of the Integra “job file”,

Each of the three were subpoenaed to avoid any issues as to who has custody of said

file, The file may contain relevant information including but not limited to Ms. Beaver-

McGarr’s credentials or lack thereof and whether the report and bases of the report

were the product of Ms. Beaver-McGarr, lntegra or was obtained from some other

source.

7.

It is clear that the Petitioner and other participants in the Public Hearing

did not have full and fair opportunity to cross-examine Ms. Beaver-McGarr. The

Applicant/Respondent wants the Petitioner to explain how the contents of that file will

aid in establishing the fundamental fairness argument without the Petitioner having an

opportunity to review the file. Ultimately, the contents of the file may not be of any

benefit and/or inadmissible however, that is not the test. The test is whether the file

contains relevant information or information which may lead to the discovery of relevant

information The Respondent has failed to assert any privilege as to the contents of the

file as a privilege does not exist. The request is not burdensome as the file need only to

be turned over to a copy servicefor reproduction at Petitioner’s expense.

12:37 pm. on Apr~l10, 2003 and therefore, is untimely and should be stricken.

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Motion to Quash be denied or for such other relief deemed appropriate.

In the

alternative, Petitioner suggests, if deemed necessary, the subpoena be limited to any

and all correspondence and communications between deponent Patricia Beaver-

McGarr and WMII.

Respectfully submitted,

QUERREY & HARROW, LTD.,

By: —

~

David Flynn

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.,

175 W. Jackson Boulevard

Suite 1600

Chicago, IL 60604

(312)540-7000

Attorney Registration No. 6225990

Attorney Registration No. 6204228

Attorneys for Petitioner Michael Watson

Docurnent#: 818715

ff899017188 01 8150 0175250 P10~~H~

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BEFORE TfliE

PetItioner,

vs.

Application)

COUNTY BOARD OF

L~LNKAKEE

COUNTY, ILLINOIS, and WASTE

(Consolidated With PCB 03-125, 03-

MANAGEMENT OF

133, 03-135, 03-144)

OI3JECTIONS TO WATSON’S INTEROGATORIES

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd., and pursuant to the rules of Illinois Supreme Court and the Illinois Pollution

Control Board (IPCB), provides the following Response to Respondent County Board of

Kankakee’s Objections To Petitioner MIchael Watson’s Tnterrogatorics:

Introduction

1. The County Board of Kankakee (County) objects to the definition of Relevant Time

and Interrogatory Nos. 5-14 and

24-25.

The objection to the timeframe is addressed separately

from the remaining objections, below.

2. As respects the County’s assertion that the timeframe of the Interrogatories is overly

broad~the timeframe defined in the Interrogatories is from August 1, 2001 to February 28.

2003. This is less than two months prior to the adoption of Resolution 01-10-09-393 by the

County and County Board, which Resolution purports to amend the Solid Waste Management

Plan of the County to specifically reference the Facility and WMII as the operator. This ~peci~

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reference, not the process the County went through in passing the Resolution, is evidence of

prejudgment and, as such, is an issue on which discovery is allowable Further, there were two

siting applications filed by WMII in this case, one on or about March 29, 2002, and the other on

or about August 16, 2002. The first application was withdrawn by WMII due to a notice defect.

Therefore,

a

timeframe that encompasses the pre-March 29, 2002 siting application, is, under

previous applications of the County ofKarikakee.

et aL

v. The City ofKankakee,

et aL.

PCB 03-31

(consolidated with 03-33,

03-35)

(01/09/03), and in discovery rulings

in

the Waste Management of

Illinois. Jnc. v. County Board of Kane

Coui1i~r,PCB 03-104, case,

an acceptable tirneframe which is

not unduly burdensome or broad for discovery purposes. Thus, the County’s objection to the

timeframe should be overruled.

3. Additionally, to the extent the County asserts that communications between its two

outside law firms, Swanson, Martin & Bell and 1-Jinshaw & Culberison, are confidential or

privileged communications, such objection must be overruled as respects the timeframe during

which either of the two Siting Applications filed by WMH before the County were pending

(specifically, between the initial filing date on or around March 29, 2002 and the date the

initial application was withdrawn by WMII, on July 22, 2002, and then, again, during the

pendency of the second siting application, between its filing date on or around August 16, 2002

and the decision date of the County on January

31,

2003). as these firms represented different

“clients” during this period of time and were barred by the rules of

ex parre

from

communications during the pendency of the proceedings. Swanson, Martin & Bell represented

the County Board and the County Regional Development & Planning Commission, and

Hinshaw & Culbertson stated its representation to be of the County staff (It. 11/18/03, 1”

2

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session,

p.

15-16). Therefore,

to the extent such objection is raised with respect to the

timeframes during which a siting application was on file, it must be overruled, as during those

periods of time the two law firms represented technically different entities and were subject to

ex pane

communication restrictions.

4.

Finally, as respects the County’s remaining objections, they overlap and repeat the

objections made by WMII to Petitioner’s Interrogatories and Document Production Requests,

and, therefore, given the short timeframe Petitioner has to respond to these objections,

Petitioner repeats and incorporates its Responses to WMII~s Objections to Petitioner’s

lratcrrogatories and Document Production Requests as and for its Response herein.

WHEREFORE, Petitioner Michael Watson respectfully requests the IPCB Hearing Officer

to overrule the County’s objections, and require the County to answer the subject Interrogatories.

Dated: April 11, 2003

PETITIONER MICHAEL WATSON

~

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorney for Petitioner Michael Watson

3

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Querr~y

&

&rroW, Ltd.

175 Wc,,t

Jackson Boulevard

Suitc

1600

Chicz~gu,XL 60604-2~27

T8L

(312)540-7000

FAX (312)540-0575

Querrey ~ Harrow

CLEPJ’S OI~P1CE

AP~11. 2003

STATE OF

ILLINOIS

PoI!utj0~Con

Xo!ict, TL

NewMcrrillvitle,York, NYIN

Waukegan, IL

Wheaton.

IL

Jennifer

J.

Sack~tCPohlcnz

Direct Dial: (312)

540-7540

E-mail:

jpph1enz~guerrev.c~~

As~lstant:

Alesia

TO:

NAME / COMPANY;

FAX TRANSMISSION SHEET

DATE: April 11,

2003

FAX

NUMBER:

Representative

UK,

Office;

London

Bradley Halloran / IPCB

Elizabeth S. Harvey

I

Swanson, Martin & Bell

Kenneth

A.

Leshen

Donald

Moran /

Pedersen & Houpt

George Mueller

Richard Porter / Hinshaw & Culbertson

L. Patrick Power

Keith Runyon

FROM:

Jennifer J. Sackett Pohlenz

(312) 814-3669

(312) 321-0990

(815)

933-3397

(312) 261-1149

(312) 433-4913

(815) 490-4901

(815) 937-0056

CMR

NO.:

IF YOU HAVE ANY DIFFICULTY iN RECEIViNG THIS TRANSMISSION

PLEASE CALL

312-540-7065

IMMEDIATELY

RETURN

TO:

Alesia

SENT BY:

The information contained in this facsimile communication is attorney privileged and confidential information

intended only for the use of the individual or entity to whom or to which it is addressed.

If

the recipient of this

transmission is not the intended recipient, the recipient is hereby notified that any dissemination, distribution, or

reproduction ofthis communication is strictly prohibited. Ifyou have received this communication in error, please

notify QUERREY &

BARROW,

LTD. at the above telephone number and return the communication to

QIIEE.E~Y

&

HAEROW,

LTD.

at the above address via the U.S. Postal Service. Thank you.

10~d

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